Johnson v. Marks ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 TIMOTHY H. JOHNSON, Case No. 3:23-cv-00361-ART-CSD 6 Plaintiff, ORDER 7 v. 8 DANA MARKS, et al., 9 Defendants. 10 11 Plaintiff Timothy Johnson brings this action under 42 U.S.C. § 1983 for 12 events occurring while Plaintiff was housed at Lovelock Correctional Center. 13 Johnson’s claim asserts that he continues to be denied necessary medical care. 14 Before the Court is Plaintiff’s motion for a preliminary injunction and temporary 15 restraining order. (ECF Nos. 14, 15.)1 Defendants filed responsive briefs (ECF 16 Nos. 33, 34, 35-1 to 35-8) and Plaintiff filed a reply. (ECF No. 38.) 17 United States Magistrate Judge Craig S. Denney has issued a Report and 18 Recommendation (“R&R”) (ECF No. 48) recommending denial of Plaintiff’s 19 motions as moot. Plaintiff filed an objection to that R&R. (ECF No. 50.) 20 Defendants filed a response (ECF No. 53), to which Plaintiff filed a reply (ECF No. 21 60.) For the reasons identified below, the Court overrules Plaintiff’s objection, 22 affirms the R&R, and denies Plaintiff’s motions for a preliminary injunction and 23 temporary restraining order (ECF Nos. 14, 15.) However, in light of the fact that 24 Plaintiff indicated in his objection and reply to the R&R that he was not receiving 25 necessary follow-up care (ECF Nos. 50, 60) the Court will order Defendants to file 26 27 1 These documents are identical but docketed separately due to the differing relief 28 sought. 1 a status report regarding Mr. Johnson’s follow-up care. 2 I. Factual and Procedural Background 3 Upon review, the Court agrees with and adopts the magistrate judge’s 4 factual and procedural history (ECF No. 48 at 1-3) in full: 5 Plaintiff is an inmate in the custody of the Nevada Department of 6 Corrections (NDOC), proceeding pro se with this action pursuant to 42 U.S.C. § 7 1983. (Second Amended Complaint (SAC), ECF No. 13.) The events giving rise to 8 this action took place while Plaintiff was housed at Lovelock Correctional Center 9 (LCC). 10 The Court screened Plaintiff’s SAC and allowed him to proceed with two 11 Eighth Amendment deliberate indifference to serious medical needs claims. The 12 first claim is for deliberate indifference to the need to monitor and treat his 13 abdominal aortic aneurysm, and is proceeding against John or Jane Doe medical 14 staff who were responsible for securing the abdominal ultrasound results. The 15 second claim is against Dr. Marks, and John and Jane Doe Utilization Review 16 Panel (URP) members when Plaintiff learns their identities. This claim is based 17 on alleged deliberate indifference to the need to diagnose and treat his bladder 18 cancer. He alleges that Dr. Marks delayed referring Plaintiff to the URP to see an 19 oncologist (or other specialist) after cancer was detected in his urine, and the URP 20 delayed approving the request to see an outside provider despite the fact that his 21 symptoms had been going on for months. (ECF No. 20.) 22 Plaintiff filed a motion for injunctive relief seeking an order that NDOC take 23 him to see a urologist or oncologist for his cancer, and to a vascular surgeon for 24 his abdominal aortic aneurysm. 25 The Court held a hearing on January 3, 2024, where Senior Deputy 26 Attorney General Rands represented that the recommended surgery had been 27 authorized and was in the process of being scheduled. (ECF No. 39.) On January 28 4, 2024, Mr. Rands filed a notice indicating that the surgery had in fact been 1 scheduled, and the dates were filed under seal for safety and security reasons. 2 (ECF Nos. 40, 41.) 3 On February 7, 2024, the Court ordered Mr. Rands to file a status update. 4 (ECF No. 45.) 5 On February 14, 2024, Mr. Rands filed a status update indicating Plaintiff 6 had two surgical procedures for his bladder: a transurethral resection of bladder 7 tumor (TURBT) on January 29, 2024, and a partial cystectomy with bladder 8 diverticulectomy and right pelvic lymph node dissection on February 2, 2024. 9 Plaintiff saw Dr. Nixon for a follow up appointment on February 7, 2024, and it 10 was recommended that he see Dr. Beal, a vascular surgeon, to discuss his 11 aneurysm. Plaintiff has another follow up scheduled with Dr. Nixon, and he has 12 been scheduled to see a vascular surgeon to evaluate his aneurysm. The dates of 13 these appointments have been filed under seal for safety and security reasons. 14 (ECF Nos. 47, 47-1.) 15 Additionally, after Judge Denney’s R&R was issued, Defendants filed a 16 status update on March 12, 2024 (ECF No. 57.) In this filing, Defendants 17 indicated that Plaintiff had completed his appointment with a vascular surgeon, 18 with supporting records from this appointment filed under seal. (Id. at 1; ECF 19 No. 55-1.) 20 II. Legal Standard 21 A. Preliminary Injunction and Temporary Restraining Order 22 A party seeking a preliminary injunction must demonstrate (1) a likelihood 23 of success on the merits, (2) a likelihood of irreparable harm if preliminary relief 24 is not granted, (3) the balance of equities is in their favor, and (4) an injunction 25 is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 26 U.S. 7, 20 (2008). The analysis for a temporary restraining order is “substantially 27 identical” to that of a preliminary injunction. Stuhlbarg Intern. Sales Co, Inc. v. 28 John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). 1 A case is moot when it has “lost its character as a present, live controversy 2 of the kind that must exist if [the court is] to avoid advisory opinions on abstract 3 propositions of law.” Oregon v. FERC, 636 F.3d 1203, 1206 (9th Cir.2011) (per 4 curiam). A motion for a preliminary injunction can therefore be moot where the 5 relief requested has been obtained. See DeFunis v. Odegaard, 416 U.S. 312 (1974) 6 (holding that case was moot where plaintiff was afforded the remedy requested). 7 B. Review of Reports and Recommendations 8 Under the Federal Magistrates Act, a court “may accept, reject, or modify, 9 in whole or in part, the findings or recommendations made by [a] magistrate 10 judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's 11 report and recommendation, then the court is required to “make a de 12 novo determination of those portions of the [report and recommendation] to which 13 objection is made.” 28 U.S.C. § 636(b)(1). A court is not required to conduct “any 14 review at all . . . of any issue that is not the subject of an objection.” Thomas v. 15 Arn, 474 U.S. 140, 149 (1985). 16 III. Analysis 17 Plaintiff objects to Magistrate Judge Denney’s R&R on the basis that his 18 motion for a preliminary injunction and temporary restraining order are not moot, 19 as there is no guarantee that NDOC will follow through with the appointments 20 which are scheduled. (ECF Nos. 50 at 2; 60 at 3, 6.) Accordingly, the Court 21 reviews this issue de novo. 22 Plaintiff’s motion for a preliminary injunction and temporary restraining 23 order requests an order that NDOC “arrange for plaintiff to be diagnosed and 24 staged for the cancer, and to see a vascular surgeon for monitoring or surgery for 25 the abdominal aortic aneurysm.” (ECF No. 14 at 26.) 26 Plaintiff does not dispute that he has since undergone medical procedures 27 to treat his cancer, and that he was scheduled to see a vascular surgeon for his 28 aneurysm. However, Plaintiff argues in his objection to Judge Denney’s R&R that 1 he is concerned about receiving the necessary follow-up care for his surgery. (ECF 2 No. 50 at 2-3.) In his reply, Plaintiff asserts that 39 days after his surgery, he had 3 yet to receive a follow up appointment to schedule BCGx6 to further treat his 4 cancer, as recommended by his surgeon. (ECF Nos. 60 at 6; 55-2 at 8.) 5 At the time of Judge Denney’s R&R, it appears from the record that Plaintiff 6 was receiving and/or scheduled to receive the medical care requested, making 7 his preliminary injunction and temporary restraining order moot. (ECF Nos. 47, 8 47-1, 57, 55-1.) The Court thus agrees with Judge Denney’s determination that 9 these motions are moot. However, Plaintiff subsequently indicated in his reply 10 brief that he is not receiving the necessary follow-up medical care. (ECF Nos. 60 11 at 6; 55-2 at 8.) Construing Plaintiff’s motion liberally,2 necessary follow-up care 12 for his cancer treatment may be encompassed in the relief sought, and may give 13 rise to a renewed motion for relief. Therefore, while the Court affirms Judge 14 Denney’s R&R and denies Plaintiff’s motion for a preliminary injunction and 15 temporary restraining order as moot, the Court will order Defendants to issue a 16 status report regarding Mr. Johnson’s follow-up care. Based on the information 17 in the status report, the Court will issue further directions to Plaintiff. If follow- 18 up care has not been provided, the Court will take additional steps to address the 19 matter. 20 IV. Conclusion 21 It is therefore ordered that Plaintiff’s objection to Judge Denney’s Report 22 and Recommendation (ECF No. 50) is OVERRULED. 23 It is further ordered that Judge Denney’s Report and Recommendation 24 recommending denial of Plaintiff’s motions for a preliminary injunction and 25 temporary restraining order as moot (ECF No. 48) is AFFIRMED. 26 It is further ordered that Plaintiff’s motions for a preliminary injunction 27 2 The Court construes pro se filings liberally. Florer v. Congregation Pidyon 28 Shevuyim, N.A., 639 F.3d 916, 923 n. 4 (9th Cir. 2011). 1 || and temporary restraining order (ECF Nos. 14, 15) are DENIED as moot. 2 It is further ordered that Defendants must submit a status report regarding 3 || Mr. Johnson’s follow-up care, including a follow up appointment to schedule 4 || BCGx6 to further treat his cancer, by October 4, 2024. 5 6 Dated this 20th day of September, 2024. 7 8 Ans jlosed Jer 9 ANNE R. TRAUM 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28